51. A mineral application will not be received for a mill site under the second clause of section 2337, United States Revised Statutes, unless it appears that there is situate upon the tract applied for a quartz-mill or reduction works capable of being used independently of works on an adjoining mill site; i. e., two mill sites may not be applied for by placing one mill or reduction works upon the line between them. Hecla Cons. M. Co., 14 L. D. 11. 52. Mineral application for a mill site on which there is no mill, and which is not used or occupied in connection with a lode which has been applied for, is invalid. Hamburg M. the assertion of adverse rights. Aspen Cons M. Co., 22 L. D. 8. (Citing Branagan v. Dulaney, 2 L. D. 744.) 58. An applicant may abandon that part of his location adversely claimed, and after survey receive a patent for the part not in controversy. Fairmount G. & S. M. Co., 1 C. L. O. 82. 59. The application for patent for a mining claim and the exclusion from the entry thereof of a part of the claim renders the excluded portion vacant public land, viz., such exclusion operates pro tanto as an abandonment. Adams Lode, 16 L. D. 233. Contra, Co. v. Stephenson, 17 Nev. 449; 30 Pac. Rep. Aspen Cons. M. Co., 22 L. D. 8. 1088. 53. A tract of land claimed and used for mining or milling purposes in connection with a patented lode claim may be entered under the first clause of section 2337, United States Revised Statutes, viz.: the mill site need not be applied for and entered with the lode claim. Eclipse Mill Site, 22 L. D. 496; Departmental decision of May 23, 1896, In re Idaho Mill Site. 54. Where a lode claim and a mill site appurtenant thereto are embraced in one survey and in one application for patent, the survey of the mill site need not be connected with a corner of the public surveys or a United States mineral monument, if connected with the survey of the lode claim, and in such a case it is not incumbent upon the claimant to show an expenditure of $500 upon the mill site, its use or occupancy for mining or milling purposes in connection with the lode claim being sufficient to entitle claimant to ask for a patent therefor. Alta Mill Site, 8 L. D. 195; Com'r to Prescott Land Office, Sept. 12, 1895, In re Genung Spring and Mill Site. 55. The owner of a mill site can protect his claim, when embraced in another's application, only by proceedings under section 2326, United States Revised Statutes. Warren Mill Site v. Copper Prince Lode, 1 L. D. 555. 56. In case a mill site for which application is made is alleged to be mineral land, a hearing may be ordered. Theo. H. Becker, 5 C. L. O. 51. 57. A mineral claimant may temporarily exclude part of his claim from his application to purchase an entry without waiving his right thereto, if such exclusion be caused by 60. The exclusion from application for patent of that portion of the claim containing the discovery renders it incumbent on the applicant to show a discovery of mineral upon claimed ground. Cayuga Lode, 5 L. D. 703; Silver Jennie Lode, 7 L. D. 6. 61. An applicant for a mineral patent may make entry of his claim exclusive of land covered by an adverse claim and take patent for the land not in conflict, without waiving his possessory right to the excluded portion. Black Queen Lode v. Excelsior No. 1 Lode, 22 L. D. 343. 62. A. may apply for a patent to a mining claim, exclusive of a portion thereof involved in an adverse suit brought by him against B., a prior applicant, without thereby waiving any right to the excluded portion, and if, on such suit, the land is awarded to A., he may then make entry of his entire claim, based on his application as to one part, and on his judgment as to the other. Rebellion M. Co., 1 L. D. 542. 63. If an adverse claim is filed against an application for patent for two contiguous claims, directed against only one of said claims, the applicant may make entry of the claim not covered by the adverse. Com'r to Marysville Office, July 10, 1896. 64. Defendant at time of filing application for patent was an alien; his application was adversed, and on the day of trial defendant was naturalized. Held, that his act of naturalization could not retroact to his purchase or acquisition of possessory right to a mining claim upon the public domain. Wulff v. Manuel, 9 Mont. 279; 23 Pac. Rep. 723. (Reversed in 152 U. S. 505.) 65. If an application for patent is ad versed, the applicant is at liberty to litigate with the adverse claimant, or relinquish the ground in conflict and take a patent for the remainder, or dismiss his application for patent and rely upon his possessory title. Branagan v. Dulaney, 2 L. D. 744. 66. A. applied for patent. B. applied for a conflicting claim and A. adversed. Held, that on relinquishment by B. of conflict with claim of A. as shown by adverse and as applied for, B. may make entry without regard to the adverse of A. Com'r to Glenwood Springs, April 23, 1896, In re Homestake Lode. 67. The exclusion by an applicant for patent of conflict with a conflicting claim is no recognition of a superior right of the owner of the conflicting claim nor of its validity. Van Zandt v. Argentine M. Co., 2 McCrary, 159; 4 Mor. Min. Rep. 441. 68. Where an applicant relinquishes the portion of premises embraced in an adverse claim, further proceedings before the department will not be stayed. Antelope Lode, 2 C. L. O. 2. 69. An applicant for a lode patent by excluding conflict with a mill site admits the non-mineral character of the land embraced therein, and if the assumed course of the lode is intersected by such mill site, the lode claimant may retain in his application only one of the non-contiguous parts of his lode claim. Michael Howard, 15 L. D. 504. 70. Where, in the published notice of application for patent, the applicant excludes, "without waiver of rights," the ground in location with a part of his claim non-contiguous and separated by land held and owned by others by virtue of a patent for a parallel lode. Col. Hall Lode, 2 L. D. 736. 74. After applying for patent and giving due notice thereof claimant need not maintain boundary stakes of his location. Byrne V. Slauson, 20 L. D. 43. 75. A protestant against a mining application has no right to appeal from the decision of the Commissioner of the General Land Office. Boston Quicksilver Mine, 4 C. L. O. 34. 76. A protest alleging non-compliance with law on the part of an applicant for a mineral patent must be sufficient to overcome record evidence of compliance with the law, in order to warrant the ordering of a hearing. Whitman v. Haltenhoff, 19 L. D. 245. 77. A protestant against an application under the mining act has no right of appeal from the decision of the Commissioner of the General Land Office. Cerro Bonito Quicksilver Mines, 4 C. L. O. 3. 78. Where parties appear as friends of the court, protesting against an application for patent, the law should be more liberally construed in favor of the applicant than in case of an adverse claim. 420 M. Co. v. Bullion M. Co., 2 C. L. O. 5. 79. A miner should be recognized as entitled to appeal who alleges a fact which, if sustained, will vitiate the proceedings so far had, and leave the land open to a new application. Neils Larson, 9 C. L. O. 111. 80. Where adverse proceedings are pending against an application for patent, the adverse claimant is not required to adverse a second application for the same land, filed by the same applicant. Rose v. Richmond M. Co., 17 Nev. 25; 27 Pac. Rep. 1105; 2 Colo. Law Rep. 7; 114 U. S. 576. conflict with another claim, he cannot thereafter embrace said conflict in his entry without giving due notice of application for said conflict in the usual manner. Departmental decision of June 18, 1896, In re Canuck Lode. 71. A formal exclusion from an applica81. Application for patent having been tion for patent of conflict with another claim filed, the applicant need not adverse a subsewill not have any effect if it is shown that,quent applicant. Steel v. Gold Lead G. & as a matter of fact, no such conflict exists. Steamboat Lode, 13 L. D. 163. 72. Patent cannot be issued based upon a discovery made after application for patent. Upton v. Larkin, 7 Mont. 449; 17 Pac. Rep. 728; 15 Mor. Min. Rep. 404. See S. C., 5 Mont. 600; 6 Pac. Rep. 66. 73. A mining applicant having a discovery shaft within the public land excepted from a patented lode claim cannot make a valid S. M. Co., 18 Nev. 80; 1 Pac. Rep. 448; 15 Mor. Min. Rep. 292; Rose v. Richmond M. Co., 114 U. S. 576; 17 Nev. 25; 27 Pac. Rep. 1105; 2 Colo. Law Rep. 7; Crown Point Lode, Sickel's Min. Dec. 116, 243-275. 82. An adverse claimant who has begun suits on his adverse claims may not file an application for patent for his entire claim and thereby compel the first applicant to adverse such second application; and if such second application has been filed it will be canceled | in their own names by the other co-owners; as to conflict with the first application, even if adverse suit has been instituted against it by the first applicant. Great Eastern M. Co. v. Esmeralda M. Co., 2 L. D. 704. 83. One who has made an application for patent (and given notice thereof) is not required to adverse a subsequent application for a conflicting claim. Rose v. Richmond M. Co., 17 Nev. 25; 27 Pac. Rep. 1105; 2 Colo. Law Rep. 7; 114 U. S. 576; Steel v. Gold Lead G. & S. M. Co., 18 Nev. 80; 1 Pac. Rep. 448; 15 Mor. Min. Rep. 292. 84. A prior patentee need not adverse a subsequent application. Mantle v. Noyes, 5 Mont. 274; 5 Pac. Rep. 856; 127 U. S. 348. 85. An application for patent will not be dismissed by the Land Office during pendency of suit based upon an adverse claim. Iron Silver M. Co. v. Mike & Starr M. Co., 6 L. D. 533; Solitaire M. & M. Co. v. Sigafus, 10 L. D. 270. 86. Proceedings may not be taken against a mineral application on a protest, during the pendency of adverse suits against the application. Swaim v. Craven, 12 L. D. 294. [NOTE.- In this case, adverse suits were instituted by lode claimants against a placer application.] but, if patent issues to them, they will be declared constructive trustees for the owner whose name is omitted from the application. Brundy v. Mayfield, 15 Mont. 201; 38 Pac. Rep. 1067; Turner v. Sawyer, 150 U. S. 578; Hunt v. Patchin, 13 Sawy. 304; 35 Fed. Rep. 816. 91. Where an applicant bases his right to a patent on a relocation, in the making of which he acted as a constructive trustee for the benefit of co-owners according to their respective interests in the original location, such co-owners are not obliged to adverse the application, but may have the applicant declared trustee. Hunt v. Patchin, 13 Sawy. 304; 35 Fed. Rep. 816. 92. Where a claim is sold on execution after application for patent has been made therefor, and notice given thereof, the vendee merely takes a right to make entry of the claim if he chooses so to do, and if he allows the applicant to make entry of the claim he has no legal remedy against the entryman, who, by entry, acquired a new and further title, which has not been sold to the judg ment vendee. Hamilton v. Southern Nevada M. Co., 13 Sawy. 113; 33 Fed. Rep. 562; 15 Mor. Min. Rep. 314. 93. Co-owners must protect their rights 87. During the pendency of a suit based by an adverse if application for patent is upon an adverse claim against a mineral ap-made by one of them. Mattingly v. Lewisohn, plication, an amended survey of the claim applied for will not be ordered. Com'r to Surveyor General at Denver, Colo., June 26, 1896, In re Mollie C. Lode. 88. Where an adverse claim is filed against an application for patent, the applicant may (1) suspend proceedings before the Land Department and litigate with the adverse claim ant, (2) relinquish the ground in the conflict from his application (litigating therefor) and take patent for the remainder of his claim, or (3) dismiss his application for patent in its entirety and continue to claim under his possessory title. Branagan v. Dulaney, 2 L. D. 744. 89. Where suit has been commenced on an adverse mining claim, the local officers should not receive from the adverse claimant an application for the ground in conflict. Great Eastern M. Co. v. Esmeralda M. Co., 2 L. D. 704. 90. A co-owner need not protect his rights by adverse if application for patent is made 8 Mont. 259; 19 Pac. Rep. 310; Grampian Lode, 1 L. D. 544; Monitor Lode, 18 L. D. 358; Gold Dirt Lode, 10 C. L. O. 119. 94. Where two co-owners of a mining claim file an adverse against an application for patent, and institute separate suits thereon, in different courts, the Land Department will not allow entry upon the application inclusive of the conflict, during the pendency of either of said suits. Black Queen Lode v. Excelsior No. 1 Lode, 22 L. D. 343. 95. Where the evidence submitted by an applicant for a placer patent shows the land applied for to be placer mining land, the character of the land cannot be questioned by one asserting an adverse claim who has not proceeded as directed by section 2326, United States Revised Statutes. Dahl v. Raunheim, 132 U. S. 260. 96. A placer claimant may file an adverse against the application for patent to a lode claim conflicting with the placer claim. Bennett v. Harkrader, 158 U. S. 441. 97. A party not in interest, but standing | under section 2326, United States Revised in relation of amicus curiæ, cannot appeal Statutes. Omaha & Grant Sm. & Red. Co. v. from any decision rendered. O. D. Lambard, Tabor, 13 Colo. 41; 21 Pac. Rep. 925. 3 C. L. O. 194. 98. Failure of adverse claimants to proceed in accordance with the provisions of sections 2325 and 2326 of the United States Revised Statutes gives operation to the rule that such adverse claims have been "adjudicated in favor of the applicant." Petit v. Buffalo G. & S. M. Co., 9 L. D. 563. 99. A stipulation between the applicant and a party claiming adversely that such opposing party may file an adverse claim within twenty days after the period of publication is void. Morrison v. Lincoln M. Co., 6 C. L. O. 105. 100. One who fails to adverse an application for patent is thereafter estopped from setting up any legal or equitable title to the land applied for. Wight v. Tabor 2 L. D. 738. 101. “If no adverse claim is filed during the required period of publication, it is assumed that the applicant is entitled to patent, and no agreement of parties can control this statutory provision. If either party claims a non-fulfillment of such agreement by the other, the remedy must be found in the courts, and not before your office or this Department." Gustavus Hagland, 1 L. D. 591. (Followed in Independence Lode, 9 L. D. 571.) 102. Failure of a prior locator to adverse the application for patent to a junior conflicting location is a waiver of priority and of right to object to issuance of such patent. Whitman v. Haltenhoff, 19 L. D. 245. 103. Failure to adverse a mineral application for patent is a waiver of all claims to the ground adverse to those of the applicant, and the fact that such adverse claims are based on the same locations as those of the applicant does not vary the rule. Nichols v. Becker, 11 L. D. 8. 104. Adverse rights must be protected in the manner prescribed by section 2326, United States Revised Statutes, or be held to be waived, in absence of fraudulent concealment by applicant. Seymour v. Fisher, 16 Colo. 188; 27 Pac. Rep. 240; Lee v. Stahl, 9 Colo. 208; 11 Pac. Rep. 77. (Reaffirmed, 13 Colo. 174; 22 Pac. Rep. 436.) 105. Any rights adverse to a mineral application must be protected by an adverse 106. Any state of facts which shows that the person alleging the same has a better right than the applicant, is the proper subject matter of an adverse claim. Mono M. Co. v. Magnolia E. & W. Co., 2 C. L. O. 68. 107. A tunnel claimant has no cause for adversing the application of a lode clamant who has made a discovery outside of the line of the tunnel, and whose location lies across the line of the tunnel, unless the lode has been discovered in the tunnel. Hope M. Co. v. Brown, 7 Mont. 550; 19 Pac. Rep. 218. (Overruled, S. C., 11 Mont. 370; 28 Pac. Rep. 732, wherein it is held that patent proceedings by the lode claimant will be suspended until development of the lode in the tunnel or abandonment of the tunnel right, and (semble) the lode claimant may be restrained from taking ore from the line of tunnel. Refusing to follow Corning Tunnel, etc. Co. v. Pell, 4 Colo. 507; 14 Mor. Min. Rep. 612.) 108. A tunnel claim, under section 2322, United States Revised Statutes, is a mining claim, and must be protected by filing of an adverse claim if application for patent to a claim in conflict therewith is filed. A failure to file an adverse claim is a waiver of all rights under the tunnel claim adverse to those of the applicant for patent. Bodie Tunnel & M. Co. v. Bechtel Cons. M. Co., 1 L. D. 584; Broder v. Natoma Water & M. Co., 101 U.S. 274. 109. The owner of a mining claim, holding under possessory title, who has agreed to convey good and sufficient title thereto, the prospective transferee being in possession, has such an interest in the property as entitles him to file an adverse claim against an application for patent to a conflicting claim, and to have a trial thereon. This right cannot be affected by State laws relating to possessory actions. (Reversing the Supreme Court of Montana.) Wolverton v. Nichols, 119 U. S. 485; 2 Pac. Rep. 308; 15 Mor. Min. Rep. 309. 110. The proper land office in which to file an application for patent or an adverse claim is the land office having jurisdiction of the land in question at the time of filing. Frederick A. Williams, 16 C. L. O. 110. 111. An entry allowed upon an application against which an adverse suit is pending will be canceled. Brown v. Bond, 11 L. D. 150. 112. An application to make mineral entry, by a successful adverse claimant, must be accompanied by official plat and field-notes describing the tract awarded him, and by a certificate of the United States Surveyor General of an expenditure of $500 upon the tract sought to be entered. Albert F. Harsh, 2 L. D. 706. 113. The General Land Office passes upon the papers of an application and upon the protest of an adverse claimant. Iola Lode, 1 L. D. 539. 114. The allegations by a protestant that the location of a mining claim applied for was invalid because in conflict with the prior location of the protestant is simply the allegation of an adverse claim, which may be tried only in the manner prescribed by section 2326, United States Revised Statutes, in a court of competent jurisdiction. Bodie T. & M. Co. v. Bechtel Cons. M. Co., 1 L. D. 584. 115. Where a mineral entry has been allowed after due notice of application for patent, a protestant who admits the sufficiency of such notice appears solely as amicus curiæ, without right of appeal from a decision of the General Land Office dismissing his protest. Bright v. Elkhorn M. Co., 8 L. D. 122. that application for patent has been filed by defendant; that suit is based on an adverse claim duly filed, and should show conflict between the claims. Cronin v. Bear Creek G. M. Co., 32 Pac. Rep. 204; Mattingly v. Lewisohn, 8 Mont. 259; 19 Pac. Rep. 310; Anthony v. Jillson, 83 Cal. 296; 23 Pac. Rep. 419. 121. An adverse complaint under the Nevada statutes need only set up filing of mineral application by defendant, and adverse ownership by plaintiff. Rose v. Richmond M. Co., 17 Nev. 25; 2 Colo. Law Rep. 7; 27 Pac. Rep. 1105; 114 U. S. 576. 122. Under the Montana statutes, a suit based upon an adverse claim against an application for a mineral patent may be tried either as a suit at law, in which case the facts must be tried by a jury, unless the right is expressly waived, or it may be heard as an equity suit, without a jury, accordingly as the relief asked is legal or equitable. Hammer v. Garfield M. & M. Co., 130 U. S. 291. 123. A conflicting application, filed during publication of a prior application, treated as an adverse claim. Hall v. Street, 3 L D. 40. 124. The failure of an applicant to comply with local regulations will not justify suit by the United States to vacate the patent issued to him. Such failure should be made the subject of an adverse claim or protest during the pendency of the application. Robert Hawke, 5 L. D. 131. 125. Where the senior survey is the junior application, entry thereof should not be al 116. A protest against a mineral application, filed after the period of publication, will not be considered by the Department on appeal, unless it is shown that the protestant has an interest in the ground involved, and that the law has not been complied with by the applicant. Parsons v. Ellis, 23 L. D. 69. 117. The grantee of an applicant for pat-lowed in view of the conflict shown in a ent against whom an adverse suit is pending takes pentente lite, even though no notice of lis pendens is filed, as publication of notice of application is process to bring all adverse claimants into court. People ex rel. Darby v. District Court, 19 Colo. 343. 118. Only the persons making an application and adverse claimants can be parties to an action in court under sections 2325 and 2326, United States Revised Statutes. Mont Blanc Cons. Gravel M. Co. v. De Bour, 61 Cal. 364; 15 Mor. Min. Rep. 286; 9 C. L. O. 205. 119. An adverse claimant who dismisses his suit cannot delay an application by commencing a second suit. Wood v. Hyde, 1 C. L O. 66. 120. An adverse complaint should allege all material facts as to plaintiff's ownership; junior survey. The claimants under the junior application, but senior survey in this case, are allowed thirty days within which to commence proceedings in court. Hall v. Street, 3 L. D. 40. 126. Where entry has been made for a mining claim, and thereafter an application is erroneously allowed for a conflicting claim, and the entryman of the first claim files an adverse claim against said application and begins suit thereon, all action will be suspended both upon said entry and said application during the pendency of said suit. Little Giant Lode, 22 L. D. 629. 127. A town lot may be the subject of an adverse claim to land embraced within an application for a lode. Papina v. Alderson, 10 C. L. O. 52. |